Asked and Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: I want to find out how many people in my area have been infected with West Nile Virus or some other disease. What obstacles might I encounter in obtaining this information?

A: Journalists generally should be able to find out basic information about how many people are infected with the West Nile Virus or other diseases in their county or state. The Centers for Disease Control and Prevention maintains public databases for many diseases, including West Nile, that are updated regularly and available through its website. The agency’s West Nile page includes a breakdown of the number of people who have contracted the disease by state and county as well as maps showing where the cases were reported.

The Health Insurance Portability and Accountability Act (HIPAA), however, could prevent the release of more detailed information such as the age, gender and other attributes of individuals who have contracted West Nile. Passed in 1996, HIPAA required the U.S. Department of Health and Human Services to create a series of regulations designed to protect a patient’s individual privacy. It is known as the “Privacy Rule.”

Unintentional violators of the the rule can incur up to a $25,000 annual fine, while intentional violators could face fines up to $250,000 or 10 years imprisonment.

The Privacy Rule is designed to prevent the unauthorized release of health information held by healthcare providers that would identify an individual. The rule defines a healthcare provider as any entity that transmits health information in electronic form in connection with healthcare-related transactions.

This means that many local, county and state health departments fall under the Privacy Rule. As a result, local public health officials will often cite HIPAA’s Privacy Rule when they refuse to release detailed information about individuals suffering from West Nile or another disease.

The Privacy Rule, however, allows healthcare providers to disclose such information in certain circumstances. For example, healthcare providers can disclose personal information to public-health authorities such as the Centers for Disease Control to help prevent, track or control diseases.

The Privacy Rule also allows healthcare providers to publicly release so-called “de-identified” information about individuals, as there is no danger that any individual could be associated with the information. Healthcare providers must remove 18 different categories of information from the data, including a person’s name, social security number and birthdate, before it may qualify as de-identified.

Additionally, the Privacy Rule allows hospitals and other healthcare providers to release basic facts about patients they have treated, including the individual’s name, general condition, religious affiliation and location in the healthcare provider’s facility. This information is known as “directory information.”

Directory information, however, does not include detailed information about the particular malady of an individual. That means that an individual hospital would generally not release whether a current patient has contracted the West Nile Virus or has a particular ailment or condition, only that the patient is being treated there.

Although some hospitals and healthcare facilities may be unsure about whether HIPAA allows disclosure of basic directory or de-identified information, the Office for Civil Rights within the Department of Health and Human Services maintains an online Frequently Asked Questions database that provides guidance on when healthcare providers are allowed to release such information. The database is a useful resource for reporters seeking to obtain information from healthcare providers. It is located at http://www.hhs.gov/ocr/privacy/hipaa/faq/index.html.

Q: Under what circumstances do I need to obtain the express consent of subjects, particularly children or their parents, in order to photograph them?

A: Photographers generally are safe from claims alleging invasion of privacy regardless of the age of the subjects if the photos are taken on public property and for an editorial use. Many courts have ruled that there is no reasonable expectation of privacy while, for instance, walking on a public street. In fact, in Johnson v. John Wiley & Sons Publishers, a Louisiana court went so far as to say that participating in a public event such as a Mardi Gras parade was “almost like an assumption of the risk” of being photographed.

Similarly, in Schifano v. Greene County Greyhound Park, Inc., the Alabama Supreme Court upheld a trial court’s ruling that a photographer was not liable for intrusion upon the seclusion of subjects whose photos were taken at a greyhound race because the men were at a public place where they could not have expected to be “secluded.” Even photographs taken by a news organization for a news story can later be used as part of their advertising so long as the images are not being used to capitalize on the reputation of the photo subjects. In Lawrence v. A.S. Abell Co., Maryland’s highest court upheld the lower court’s rejection of privacy claims brought by the mothers of two infant children whose photos appeared as part of an advertising campaign by the newspaper. The mothers originally gave their consent for the images of their children to appear as part of a story on a public festival. The court concluded that there was no misappropriation of the likeness of the children because the subsequent use of their images was incidental to the ad campaign.

The issue of whether photograph subjects can successfully sue for invasion of privacy becomes trickier when either the photos are taken on private property or a journalist, in pursuing a story, follows the subjects from public onto private land. A photographer typically needs the consent of a private property owner before taking images while on the property. Some courts have required this consent even if the private land — such as a restaurant or mall — is open to the public. In Le Mistral, Inc. v. CBS, a New York appellate court upheld a jury verdict finding a CBS television reporter and the station liable for trespass after the reporter and a camera crew entered an expensive restaurant without consent to report on city health code violations against the restaurant.

Once a photographer has gained the consent of a private property owner, images typically can be taken of subjects without their express consent, provided the photos are for an editorial use, such as publication in a newspaper or book, rather than for a commercial venture or advertising. A photographer may in some jurisdictions be able to take photos of minors even without the consent of their parents or guardians so long as the images are used for an editorial purpose.

Some courts, however, do evaluate the capacity of the subjects to give consent. In Deaton v. Delta Democrat Publishing Co., for example, the Mississippi Supreme Court affirmed a lower court’s finding that the publication of photographs of mentally retarded children without the consent of their parents could be considered intrusive, even though the photographs accompanied an article about a public school’s special education class, which was a matter of legitimate public interest.

Q: Can the public view search warrant information?

A: Public access to search warrant documents depends on a court’s discretion, but the standard a court will use to consider an unsealing request varies.

Federal courts have disagreed on whether the public right of access to search warrant documents is anchored in the First Amendment or the common law. The distinction is significant because it determines the standard a court must use when evaluating requests to unseal documents.

In September, the U.S. Court of Appeals in Cincinnati (6th Cir.), which spans Kentucky, Michigan, Ohio and Tennessee, explicitly ruled that a member of the public seeking search warrant information has no First Amendment right to the materials.

Instead, he or she must argue that the “public’s right to know outweighs interests of privacy in sealing a particular document,” the court ruled in In re Search of Fair Finance.

There is a long history of confidentiality and secrecy surrounding search warrant proceedings, especially in light of their often time-sensitive nature. Public access to search warrant documents before the search is performed could harm criminal investigations, but the Sixth Circuit also concluded that harm can occur by releasing documents even after the search is performed.

Documents could reveal confidential witnesses or the government’s prosecution strategies, the court said. Public disclosure also can alert suspects to other potential searches or embarrass innocent people, it added.

Because of these potential harms, the court concluded that there was no right of access to search warrant documents under the First Amendment, even after the government performed the search and inventoried its findings.

The court recognized the limits of its ruling, saying that a media organization could still seek search warrant documents under a common law right of access by arguing that the public interest in such a document outweighs the privacy interests at stake.

The U.S. Court of Appeals in San Francisco (9th Cir.) applied this common law balancing test last year but did not decide either way if a First Amendment right exists.

In United States v. Business of Custer Battlefield Museum, the Ninth Circuit concluded that warrant materials have “historically been available to the public” after an investigation ends. This contrasts with the Sixth Circuit’s statement that access to those documents is typically “left to the sound discretion” of a court.

These two contrasting cases are just the latest chapter in a varied body of law.

In the 1988 case In re Search Warrant for Secretarial Area, the U.S. Court of Appeals in St. Louis (8th Cir.) recognized a First Amendment right of access because documents related to search warrants typically are not filed under seal.

And many courts apply different standards depending on whether the warrant has been carried out or the investigation is ongoing, using that as a factor in the overall balancing test.

Ultimately, the answer lies in the law of the jurisdiction where the search warrant information is being sought.